54 Miss. 437 | Miss. | 1877
delivered the opinion of the court.
The Chancellor, having determined that Mr. Howell is entitled to homestead exemption, erred in subordinating his claim in this respect to the deed of trust executed by Howell in February, 1874, without the joinder of his wife. There can be no question of the right of the holders of the deed of trust to subject the property as to its value in excess of $2,000, the maximum of a homestead exemption. That was settled in Bank of Louisiana v. Lyons, 52 Miss. 181. But upon the facts of this case as disclosed hy the record, the appellees did not acquire the rights of the holder of the deed of trust executed by Howell for the purchase-money of the land. Bush, Patty & Co. paid the money which extinguished the claim against Howell for the balance of purchase-money; but the deeds of trust which secured that were cancelled, and there was no agreement or understanding between the parties that Bush, Patty & Co. should stand in the place of the seller of the land. On the contrary, a new deed of trust was executed by' Howell to secure Bush, Patty & Co. the performance of the
Decree reversed and cause remanded.
delivered the opinion of the court.
This case was submitted on a former day, without brief or argument for the appellees, and an opinion was delivered and decree reversed. Upon application by counsel for the appellees, and a sufficient showing, the judgment was recalled and the case reinstated upon the docket for argument, and it was afterwards submitted upon briefs of counsel on both sides ; and we have re-examined the case, with the aid of a very elaborate argument, containing numerous references, by counsel for the appel-lees. The case was considered before with direct reference to the precise question so earnestly argued by counsel for the appellees. The general principle contended for by counsel was assumed as incontrovertible, and so well settled and understood as to relieve us from either stating it or citing authorities. That principle is, that, as a general rule, a mere change in the form of the evidence of indebtedness will not operate to discharge a lien given to secure a debt, unless it is apparent that the parties intended to extinguish the lien. Whenever it is clear that the creditor still intended to retain it, his right is not affected by a mere change of the instrument,
Decree accordingly.
Reargument denied.